https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12195

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CIVIL APPEAL NO. E022 OF 2024** **DOROTHY MUTHONI…………………………….....……………...APPELLANT** **VERSUS** **SUSAN WANGECI GITHAE…………………...…………………RESPONDENT** *(Appeal from the judgment and Decree of the learned magistrate, Hon. D.M Ireri (P.M), delivered on 8/9/2023 in Baricho CMCC No. 105 of 2022)* **JUDGMENT** 1. By an Amended Plaint dated 13/6/2023, the Respondent sued the Appellant seeking general damages for pain and suffering, special damages of Ksh. 25,320, damages for future medical expenses and costs of the suit plus interest. The Respondent pleaded that on or about 14th July 2021, she was a passenger along Karima Ngando Road when the Appellant so negligently and recklessly drove motor vehicle registration No. KCX 901 R that it lost control, as a result of which she suffered serious injuries on the forehead and left lower limb. She further required future medical attention for Ortho-trauma outpatient sessions, and repair of the left hip fracture at a total cost of Ksh.1,069,220. 2. The Appellant denied the claim vide her statement of defence dated 4/8/2022 and prayed for the Respondent’s suit to be dismissed with costs. 3. The parties recorded a consent judgment on liability at the ratio of 80:20 in favour of the Respondent against the Appellant, and upon full hearing on quantum, the trial court awarded Ksh. 1,500,000 for pain, suffering and loss of amenities, Ksh. 1,069,220 for future medical expenses and special damages of Ksh. 25,320 less 20% contribution = Ksh. 2,075,632 together with costs and interest. The appeal 1. On appeal, the Appellant vide her memorandum of appeal dated 25/1/2024 set out 7 grounds as follows: 1. *The Learned Trial Magistrate erred in law and fact by awarding damages of Kshs 1,069,220 for Future Medical Expenses which had not been proved as required by law.* 2. *The Learned Trial Magistrate erred in fact and law by awarding damages of Kshs 1,069,220 for Future Medical Expenses and disregarding the Evidence produced by the Appellant and in more specific the Appellant’s Medical Report.* 3. *The Learned Trial Magistrate erred in law and fact by failing to consider the Appellant’s submissions and judicial authorities on Future Medical Expenses thereby arriving at an erroneous conclusion and determination.* 4. *The Learned Trial Magistrate erred in law and fact by failing to take into account the pertinent issues in regards to the award of Future Medical Expenses raised in the appellants’ submissions.* 5. *The Learned Trial Magistrate erred in law and fact by failing to appreciate the appellant’s Medical Report, contentions and arguments.* 6. *The Learned Trial Magistrate erred in law and fact by disregarding the evidence on record thus arriving at an erroneous decision.* Duty of the Court 1. This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. (See Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123). 2. The case was heard by way of written submissions and the documents by the parties produced by consent, without calling the makers. Submissions on Appeal 1. The Appellant cites *Butt v Khan (1981) KLR 470, Jane Chelagat Bor vs.Andrew Otieno Onduu [1988-92] 2 KAR 288; [1990-1994] EA 47 and Kitavi v Coastal Bottlers Ltd (1985) KLR 470)*, on when an appellate court can interfere with discretion of a trial court. She faults the trial court for misapprehending the evidence and totally disregarding the 2nd medical report dated 9/5/2022 where no suggestion on future medical expenses was made, and cites *Otange Group Limited v Mong’are (Civil Appeal E041 of 2021) [2024] KEHC 3122 (KLR), Dharmagha Patel & another v TA (A minor suing through the mother and next friend HH) [2021] KEHC 3067 (KLR) and Martin Kidake v Wilson Simiyu Siambi [2014] eKLR, Tracom Limited and another v Hasssan Mohamed Adan [2009] eKLR, Kenva Bus Services Ltd v Gituma (2004) 1 EA 91*. 2. The Respondent faults the Appellant for failing to adduce another medical report from their preferred doctor, thereby leaving the trial court with no option but to go with the medical report by Dr. Kane Maina dated 27/7/2022, which was produced by consent. Analysis and determination 1. From the grounds of appeal as framed, the twin issues for determination are whether the award of Ksh. 1,069,220 for future medical expenses was justified and whether the Appellant’s submissions were considered. 2. In *Kenya Bus Services Ltd v Gituma (2004) 1 EA 91*, the court held that; *“While an award of damages to meet the cost of future medication is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereon is to be led and the court is to make an award thereon. In personal injury cases, the only damage that is contemplated by law as arising naturally is the personal injury itself and the consequential pain and suffering. Accordingly, matters pertaining to hospitalization, treatment and management, the need for further medical care, the disabilities, and attendant pecuniary losses (present and future) are special damages which must be pleaded.”* 1. Similarly in *Geoffrey Kamuki & another v RKN (Minor suing through her late father and next friend ZKN (2020) eKLR*, the court *(Mumbua T. Matheka J)* espoused that; *“To demand a specific sum to be proved specifically like special damages would be unreasonable. This is a claim for money not yet spent, for money estimated to be spent depending on how the claimant’s body is responding to treatment among other things. It is not always clear at that time of filing the case what these future costs may be. The prognosis could change for the better or for the worse depending on the circumstances. Is it not for the same reason that defendants will often seek second medical opinions in injury-based claims? Where they believe that the plaintiff has healed from their injuries, they do so to influence the ultimate award of general damages for pain and suffering. This happens even when the case is already before court and it may well be in the middle of the trial. A plaintiff such as this one ought not to be denied the award because she did not have a figure in mind. It was pleaded, and if the appellant was disputing it, the right place would have been at the trial. Respondent could have done so by bringing evidence to controvert it.”* 1. The Respondent was examined by Dr. Cosmas Kimama on 9/5/2022 who noted that her lower limbs had not healed and she was walking with crutches. The doctor concluded that the Respondent suffered pelvic fracture injuries classified as grievous harm, and had not fully recovered therefrom. While the doctor conceded that the injuries sustained by the Respondent were severe, he did not give estimates of any anticipated future medical expenses. 2. The Respondent was equally examined by Dr. Kane Maina 2 months later on 27/7/2022, who opined that the Respondent *“will need to attend Ortho-trauma Outpatient sessions that include radiology imaging and reports in each session estimated at Kes 18000 per session, and physiotherapy sessions estimated at Kes 2000 per session both done monthly would be estimated at Kes 240,000 for a year. She requires indefinite anti-inflammatory analgesics occasional antibiotics estimated at Kes 1520 per week for the two years, estimated to a total of Kes 145,920. She got fractures of cervical spine right transverse processes at C6 and C7 that will require a Neurosurgeon intervention estimated at Kes 450,000. She needs review and management by orthopaedic surgeon for possible repair of the left hip fracture, estimated at Kes 150,000 for the procedure, exclusive of bed, ward, admission, laboratory and pharmacy charges that are estimated at Kes 83,300, totalling to Kes 233,300. Total cost for the above future estimates is Kes 1,069,220.”* 3. At the time of examination, the Respondent’s current complains were severe left hip pain and inability to walk without crutches. 4. Of significance to note is that the medical reports were produced by consent, and therefore it can be safely inferred that the medical evidence on future medical expenses was uncontroverted. 5. In the absence of any rebuttal evidence, the trial court was justified in adopting the findings and estimates of Dr. Kane Maina in assessing and awarding future medical expenses of Ksh. 1,069,220. Consideration of the Appellant’s submissions 1. The Appellant faults the trial court for disregarding her submissions and authorities but the submission is misconceived because submissions, however persuasive, cannot take the place of pleadings, and their non-consideration cannot in itself be a basis to overturn a trial court’s decision. See for instance *Charles Mutuma M’kanake v Diocese of Meru Trustees Registered [2021] eKLR* (*Patrick J.O. Otieno J.*): *“This court takes the view and position that such a ground is not sustainable on a first appeal and cannot be a basis to overturn a decision of the trial court unless it finds support in the ultimate decision.”* 1. Besides, the mere fact that the trial court was not persuaded by the submissions of the Appellant together with the authorities cited does not imply that they were disregarded altogether. **ORDERS** 1. Accordingly, for the reasons set out above, this court finds the appeal to be without merit and it is dismissed. 2. There shall be no orders as to costs. *Order accordingly.* **DATED AND DELIVERED THIS 30TH DAY OF JULY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mr. Mulaki for the appellant Mr. Nyaga for the Respondent.